Limitation on Jurisdiction Clause

[paineinthearse]

I've seen this (or similar) wording on other rethug resolutions ....

Limitation on Jurisdiction- No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, this section.

This particular passage is from Duncan Hunter's H. R. 2229 - http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.2229:

I'm no lawyer, but...isn't this phrasing UNCONSTUTITIONAL?

By the way, Duke Cunningham is still listed as a co-sponsor.

[no_hypocrisy]

1. I can't see the Supreme Court in the tradition of Lewis Carrol endorsing

that language. In other words, can you imagine the Supremes saying, "Yeah, we can't look at that case. Congress won't let us." Everything essentially could be interpreted as a mandatory (as opposed to discretionary) political question* if Congress enacts it.

* Political Question:
A question that a court determines to be not properly subject to judicial determination (i.e., which is not justiciable) because resolution of it is committed exclusively to the jurisdiction of another branch of government (legislature or executive), because adequate standards for judicial review are lacking, or because there is no way to insure enforcement of the court's judgment. Jurisdiction is not lacking since the court has the power to decide political questions but chooses not to. Cases challenging the composition of state legislative bodies had been held political and nonjusticiable, until the Court determined that no other remedy existed an equal protection of the laws violationi was found, resulting in the forumuolation of the "one-man-one-vote" remedy.

[acmejack]

2. Here is the RW's justification for it.

Courtesy of the Grande Dame (Bleech) herself, heres Phyllis: snip> "the long historical record which conclusively proves that Congress has the power to regulate and limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have consistently accepted Congress exercise of this power. The record is impressive, authoritative, and unquestioned." http://www.eagleforum.org/psr/2004/july04/psrjuly04.html

I think that you couldn't say one branch has no power to impose a check on another branch and you would be hard pressed to get the first branch to rule that the second branch does has the power to limit the power of the first. maybe I'm not very smart (OK, so there's no maybe involved) but human nature would seem to dictate that this is the case.

[Neil Lisst]

3. Statutory v. Constitutional Courts

For example, the Bankruptcy Judges.

[adwon]

4. A thought

I'd say that it's not facially invalid. Every federal court, except the Supreme Court, is a creation of Congress. Congress does have wide latitude in defining the jurisdiction of those courts, but there is a practical limit. There's a traditional standard that when Congress closes one door, it must leave another open. There's also the simple fact that a jurisdictional clause such as that simply fails if the law violates constitutional rights. No mere statute can override constitutional provisions so a clause like this in a case like that is a waste of ink.

By the way, I took a look at that Eagle forum link another poster provided. They might want to rethink the whole idea. DOMA is unconstitutional under conservative jurisprudence, whether or not they realize it. In fact, it wouldn't hurt for them to read Thomas' concurrence in Lopez, where he specifically cites a federal law regulating marriage as being unconstitutional because it would be intruding into traditional state areas of regulation.

[paineinthearse]

5. Other Thomas occurence of the phrase

"No court created by Act of Congress shall have any jurisdiction..."

http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.3313.RH:
H. R. 3313

To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act.
IN THE HOUSE OF REPRESENTATIVES
October 16, 2003

This is probably why it is in the Eagle forum.